Would Rudy Be Good for the Courts?
Well, Meese was good for the courts, and Giuliani didn't think much of him.


Robert Alt

After a disappointing performance in the first Republican presidential debate, Rudy Giuliani walked away from last night’s debate as the clear winner. Not only did he play to his strengths, reclaiming the mantle of America’s mayor by shaming Ron Paul for his “blame America first” comments, but he finally appears to have settled on a more politically palatable answer to the abortion question by emphasizing a reduction in the frequency of abortions. (An answer which, by the way, suggests that one of his staffers finally watched footage from Bill Clinton’s campaigns. Remember the old mantra of “safe, legal, and rare”?) This follows strong endorsements from the Club for Growth and from former United States Solicitor General Ted Olson here on National Review Online. And yet, questions remain about Giuliani’s conservative bona fides, and nowhere are these questions more pressing than on the issue of judicial nominees. Despite Olson’s assurances, Giuliani’s poor character judgment, as demonstrated by his attacks on Edwin Meese, the architect of Reagan’s judicial legacy, creates grave doubts about whether he is the best man to be picking federal judges.

In determining what the “Giuliani Court” would look like, the fundamental question is whether Giuliani, as president, would appoint judges to the bench who view the Constitution as something other than their own personal policy-preference playground. On this count, Giuliani has offered a series of assurances: He would have no litmus test on abortion, and he would appoint “strict constructionists” like Justices Scalia, Thomas, Roberts, and Alito. Leaving aside the fact that “strict constructionist” is a term popular with politicians but an inaccurate one to describe the Justices he lauds (Justice Scalia famously said, “I am not a strict constructionist, and no one ought to be . . .”), the prospect of appointing judges with fidelity to the Founders’ principles is easier said than done. Indeed, Republican presidents have, on the whole, proven themselves to be fairly inept at judging how nominees would judge, as evidenced by the fact that two of the most liberal justices in the history of the Supreme Court — William Brennan and Harry Blackmun — owe their appointments to Republican presidents.

Well-meaning presidents have made bad picks, and so, even if we believe that Giuliani does not intend to appoint willful judges, those good intentions and naked assurances tell us little about what kind of judges to expect. Yet Olson, whom I deeply respect, offers another reason to trust Giuliani: his participation in the Reagan’s legal legacy.

We first met when we served together in the Justice Department in the early years of the Reagan administration, where Chief Justice Roberts and Justice Alito were young lawyers honing their conservative legal instincts, and where jurists such as Bork, Scalia, and Thomas were first being considered for judicial positions.

Of course, he doesn’t claim that Giuliani is responsible for these men being where they were. Tellingly, Attorney General Edwin Meese, the man most responsible for shepherding conservative jurists through the Justice Department, didn’t make the list. In terms of promoting conservatism in the Justice Department or on the courts during the Reagan years, Meese’s impact was unmatched. It is therefore disturbing that Giuliani held Meese in utter contempt. After stepping down as U.S. Attorney, Giuliani publicly blasted Meese, claiming that he was “probably not suited for the job that he was given as attorney general,” and that Meese “should not have been given that job because it was beyond his abilities.” Beyond his abilities? I’ve seen General Meese answer questions of legal arcana off the top of his head countless times; by contrast, Giuliani seems to get stumped when asked whether the existence of a constitutional right requires government funding.

This attack on whether Meese was even suited to be attorney general followed Giuliani’s antics as U.S. Attorney, during which he authorized one of his assistants in the Wedtech case to call Meese a “sleaze” in open court in order to score points with the jury. If there is any question that this sentiment was Giuliani’s own, he cleared that up in a press conference after the trial:

U.S. Atty. Rudolph W. Giuliani held a press conference, during which he defended [Assistant U.S. Attorney Edward] Little’s use of the word “sleaze” to describe Meese. Giuliani said that any criticism for Little’s remarks should be directed at him.

“All of his (Little’s) arguments and comments were authorized by me and approved by me, including some that drew some criticism from the Department of Justice,” Giuliani told reporters. “Those comments were authorized and approved by me in advance. It’s as if I said them” (emphasis added).

One of those classically-invasive Reagan-era independent counsels cleared Meese in the Wedtech case. Of course that didn’t matter: Attacking Meese was fashionable at the time — all the Democrats were doing it. And, for someone who had aspirations of running for mayor of New York, this was a position which would undoubtedly curry favor with his constituents. While numerous commentators have lauded Giuliani’s decision to criticize his boss as an example of his independence, it is better evidence of how beholden he was to liberal New York public opinion. If he was willing to sell out Meese to raise his standing with liberal New Yorkers, do we really think that he will withstand the withering criticisms of New York’s elite if he fails to deliver justices in the mold of David Souter?

Attorney General Meese is a man of consummate character. He served honorably as attorney general, and, unlike Rudy Giuliani, deserves significant credit for shaping the legal legacy of Ronald Reagan. Anyone who casts aspersions of the kind that Giuliani did against Meese calls his own judgment into question — particularly when he is asking for us to trust that judgment in picking judicial nominees.

– Robert Alt is an NRO contributor.

JUST CAN’T GET ENOUGH? Bill Simon likes Rudy. Robert Alt knows elections.